Judgement No. 78/2019/DS-PT dated june 19, 2019 regarding petition for declaration of invalidation of contract and revocation of individualized decision

PEOPLE’S HIGH COURT OF HANOI

JUDGEMENT NO. 78/2019/DS-PT DATED JUNE 19, 2019 REGARDING PETITION FOR DECLARATION OF INVALIDATION OF CONTRACT AND REVOCATION OF INDIVIDUALIZED DECISION

On June 19, 2019, at its courtroom, the High People's Court of Hanoi city held a public appellate trial of the civil case No. 112/2018/TLPT-DS entertained on September 4, 2018 regarding “petition for declaration of invalidation of the contract and revocation of the individualized decision”.

Owing to the fact that the preliminary ruling No. 04/2018/DS-ST dated June 29, 2018 of the People’s Court of Nghe An province is appealed. 

According to the Decision to bring the case No. 6240/2019/QD-PT dated May 27, 2019 to the appellate trial between litigants:

* Plaintiff:

Mrs. Hoang Thi D, born in 1933;

Address: Y Street, T Quarter, H Ward, V City, Nghe An Province.

Mrs. D’s authorized representative: Mrs. Vo Thi Hong L, born in 1961;

Address: Home No. 43, T Street, Hamlet 19, N Commune, Nghe An Province. (Power of Attorney dated October 5, 2017); Mrs. D and Mrs. L are present.

* Defendant:

1. Mr. Hoang Dinh Ph, born in 1974;

2. Mrs. Tran Thi Thanh H, born in 1978;

Both are residing at: No. 6, C Street, V Ward, V City, Nghe An Province.

Mr. Ph and Mrs. H are present.

* Persons with associated rights and obligations:

1. People’s Committee (abbreviated to PC) of V City, Nghe An Province;

Authorized representative: Mr. Nguyen Trong T1, title: Officer of the Division of Natural Resources and Environment; He submitted application for trial in absentia.

2. No. 1 Notary Public Office, Department of Justice of Nghe An Province;

Legal representative: Mr. Nguyen Canh T2; Title: Chief; He submitted application for trial in absentia.

* Appellant:

Plaintiff: Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H are present.

CASE DESCRIPTION

According to the petition to sue dated April 15, 2017 which was supplemented on September 11, 2017 with testimonies and the first-instance ruling, plaintiff Mrs. Hoang Thi D made the following statement:

Mrs. Hoang Thi D has a land plot (attached to the house) covering an area of ​​121.3m², belonging to the parcel No. 43, map sheet No. 62, at block T, H Ward, V City, Nghe An Province according to the Certificate of land use right granted by H City’s People's Committee (sometimes briefly referred to as Land Tenure Certificate) dated October 13, 2008 on which Mrs. Hoang Thi D registers as the holder. In 2014, due to her old age and weakness, she intended to give her children the title to the land; However, because her children are residing overseas (with US citizenship), which prevented any of them from being named as the holder of the land use right certificate, she asked the married couple, Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H (younger cousin) to register their names as the certificate holder.

In order to make it legal, on March 18, 2014, she and the married couple, Mr. Ph and Mrs. H, made a contract to transfer land use right to the above land plot and was granted the land use right certificate number BS 189465 by V City People's Committee on April 21, 2014 with the names of Mr. Hoang Dinh Ph and Ms. Tran Thi Thanh H shown on the certificate as the holders; But in fact, the contract was only to legalize the fact that she asked Mr. Ph and Mrs. H to lend their names as the holders of the land use right certificate. In fact, there was no transfer of such right, so she has still managed, used and lived on that land since then. Now she requested the declaration that the land use right transfer contract is invalid; At the same time, she requested that the land use right certificate issued by City V People's Committee to Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H is revoked.

As for the consequences of the invalid contract: Because the fact that the contract is pretending makes it not effective, and does not oblige the contracting party to actually transfer the property, there are no consequences. Therefore, Mrs. D does not request any action on this issue.

Defendant Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H made their statement as follows: Land parcel No. 43, map sheet No. 62 at block T, ward H, city V, has a land use right certificate issued by City V People's Committee with their name shown as the holders. The land is the property of Mr. Pham Duy L (Mrs. D’s son) who asking for their help to bear their name on the certificate as Mr. L’s living abroad made him not eligible to be named in the land use right certificate in Vietnam. Therefore, all issues related to the right to use the above land plot must be decided by Mr. L himself since Mrs. D does not have the right. So they disagree on the Mrs. D's filing of a lawsuit to request the declaration of the invalidation of the land use right transfer contract and the revocation of the land use right certificate.

Representative of People’s Committee of V city gave their comments as follows: In 2014, Mrs. Hoang Thi D made a transfer contract for Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H, the land plot No. 43, map sheet number 62, at block T, ward H, city V, covering an area of 121.3m². Pursuant to the transfer contract, the People's Committee of V City issued a land use right certificate to Mr. Ph and Mrs. H in accordance with the law. Now, the People's Committee of City V disagrees on Mrs. D’s statement that the land use right transfer contract is and requires the cancellation of the land use right certificate. However, if both parties attest that the contract is , the People's Committee of City V will consent to their request.

No. 1 Notary Public Office, Department of Justice of Nghe An Province gave their statement as follows: On March 18, 2014, No. 1 Notary Public Office’s conduct of the notarization of the contract to transfer the right to use land and attached property between Mrs. Hoang Thi D and the married couple Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H was in compliance with the law; even when the litigants believe that the contract is pretending, the office finds it not involved in. So they request the Court to have it resolved according to the law.

With the above-stated statements, in the First-Instance Civil Judgment No. 04/2018 / DS-ST dated June 29, 2018 of the People's Court of Nghe An province, upon applying Articles 122, 127, 129, 138, 697 and 698 Civil Code 2005 in Viet Nam; Articles 26, 34 and 147 of the Civil Procedure Code in Viet Nam and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly’s Standing Committee on court costs and fees, the Court ruled that: Mrs. Hang Thi Dien’s petition to sue was accepted.

Also, the Court pronounced the following decisions:

1. Declaring a land use right transfer contract dated March 18, 2014 between Ms. Hoang Thi D and Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H for the land plot No. 43, map sheet number 62, at block T , ward H, city V, Nghe An province is invalid.

2. Revoking the Decision No. 2108 / QD-UBND dated April 21, 2014 of People's Committee of City V, Nghe An province on the issuance of the certificate of the right to use land, own houses and other land-attached property and cancelling the certificate of land use right No. BS 189465 dated April 21, 2014 by People's Committee of city V, Nghe An province, carrying Hoang Dinh Ph and Tran Thi Thanh H’s names.

3. Retaining the rights to initiate another civil lawsuit for involved parties about the request for settlement of consequences of invalidated contract. In addition, the judgment also dealt with court costs, and had the declaration of the right of appeal in accordance with law.

After the first instance trial, on July 11, 2018, the defendants, Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H, had an appeal stating that: First-instance judgment seriously violated legal proceedings, omitted procedural participants and infringed upon their legitimate rights and interests. Therefore, the appellate court is petitioned to consider canceling the first-instance judgment for re-trial and involving all participants to the court proceedings.

At the appellate hearing, the appellants still keep their appeal unchanged;

Litigants gave their statements as follows:

- Appellants, Mr. Ph and Mrs. H, gave their statement as follows: The first instance court had many serious violations against the legal proceedings, such as: Violating the procedures for serving and posting procedural documents and documents already changed due to erasure; omitting the participant in the court proceedings, Mr. Pham Duy L, even though Mr. Ph and Mrs. H had filed the petition which was then rejected by the court; allowing Mrs. Vo Thi Hong L to participate in the court proceedings as the authorized representative of Mrs. D is inappropriate because this is the case of request for invalidation of the contract, not the case of property dispute as specified in the power of attorney where Mrs. D authorizes Mrs. L to act as her representative in the property dispute case.

The land plot No. 43, map sheet No. 62 at Block T, Ward H, City V was initially owned by Mrs. D and, on September 3, 2013, Mrs. D agreed to give the right to use land and associated property to Mr. Pham Duy L. However, because Mr. Linh’s residing overseas made him not eligible to be named in the land use right certificate under Vietnamese law, Linh asked Mr. Ph and Mrs. H to help him to carry their names on the certificate; all decisions related to the above-mentioned land use right must be decided by Mr. L.

Therefore, they petition the Trial Panel to revoke the preliminary ruling made by the People's Court of Nghe An province and return the case for re-trial.

- Plaintiff’s representative and plaintiff gave the following statements: The first-instance judgment was made in accordance with the law and the defendant’s appeal against such judgement is unfounded. So the plaintiff is asking the court not to accept the appeal and uphold the first instance judgment.

Both litigants failed to reach agreement on case resolution.

Representative of the High-level People's Procuracy in Hanoi gave the following opinions:

Regarding compliance with legal proceedings: Procedural participants and procedure-conducting persons have complied with the Civil Procedure Code at the Court of Appeal.

Regarding case contents: The first instance court had many violations against the legal proceedings, such as: Violation arising from sending and posting of procedural documents; the decision to adjourn the court hearing which was not served to the involved parties; omission of the participant of the procedure who is Mr. Pham Duy L when, in the process of settling the case, Mr. Ph and Mrs. H had a petition that, due to the property which was originally owned by Mr. L, the case that relates to the property must be decided by Mr. L. In the third listed violation, the first instance court did not accept the petition and did not summon Mr. L to participate in the court proceedings, which is a serious violation of the proceedings, affecting the interests of the involved parties.

Therefore, the representative of the High-level People's Procuracy in Hanoi requested that, based on Clause 3, Article 308 of the Civil Procedure Code, the defendant's appeal is accepted, the first-instance judgment of the People's Court of Nghe An province is invalidated, and the case file needs to be handed over to the Court of First Instance for re-trial.

COURT’S COMMENTS

After studying documents available in the case file which have been examined at the court session and based on the results of arguments at the court session, the trial panel shall draw the following conclusions:

* Regarding legal process:

[1] Regarding determination of the eligibility of litigants for participation in the legal proceedings: The first-instance court’s determination of the civil case plaintiff, the civil case defendant and persons with rights and obligations related to the case is in accordance with law; during the process of settlement of the case, the defendants were deliberately absent; persons with related rights and obligations applied for trial in absentia. Therefore, the Court’s conduct of the trial in absentia conformed to the regulations laid down in Article 227 in the Civil Procedures Code. Mr. Ph and Mrs. H's statement that the Court brought Mrs. L to participate in the legal proceedings as the plaintiff's authorized representative is not correct. However, according to the authorization contract between Mrs. D and Mrs. L notarized on October 5, 2017, Mrs. D's will is to authorize Mrs. L to participate in the resolution of the case until the end of the case; At the appellate court hearing, since Mrs. D was present and still affirmed her authorization granted to Mrs. L to participate in the appellate court proceedings, then the Court accepts Mrs. L's participation in the court proceedings after consulting grounds in accordance with Article 85, Article 86 and Article 87 of the Civil Procedure Code.

[2] Regarding authority: Based on the content of the petition, the petition is to request the declaration that the land use right transfer contract is invalid, and the decision to grant the land use right certificate and the land use right certificate of the City People's Committee are revoked. As this is an individualized decision of a district-level land regulatory authority, it falls under the jurisdiction of the first instance People's Court of the province. Therefore, despite entertaining the case, the People's Court of city V’s transfer of the case to the People's Court of Nghe An province for entertaining and settlement of the case in accordance with the first instance order is compliant with regulations laid down in Article 32 of the Administrative Procedure Law in Viet Nam and Clause 3, Article 26, Article 34, Article 37, Article 38 and Article 41 of the Civil Procedure Code.

* Regarding case contents:

[3] On October 13, 2008, Mrs. Hoang Thi D was granted a land use right certificate by the People's Committee of City V, land plot number 43, map No. 62 at block T, ward H, city V, Nghe An province with an area of ​​121.3m². On March 18, 2014, Mrs. D made a contract to transfer/give the right to use the above land plot to Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H. Based on the transfer/gift contract, the People's Committee of city V processed documents as prescribed and, on April 21, 2014, the People's Committee of City V issued the Land Use Right Certificate No. BS 189465 to Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H. However, according to the plaintiff and the defendant, this transfer of land use right is only a form of asking the married couple Mr. Ph and Mrs. H to lend their name; Because, according to Mrs. D at that time, she was old and weak, she intended to transfer the land use right to her son, Pham Duy L. However, since Mr. L was residing abroad, he was not eligible to be granted a land use right certificate. Because she only asked Mr. Ph and Mrs. H to lend their name on the land use right certificate, in fact, Mrs. D did not hand over the property, including house and land use rights, to Mr. Ph and Mrs. H, but still lived on this land till now, and before the contract of transferring/giving land use right between Mrs. D and Mr. Ph and Mrs. H, there has been a written agreement on asking Mr. Ph and Mrs. H to lend their name on the certificate; This document was certified by Mr. Hoang Dinh Ph and Mr. Hoang Dinh Hoai, Hoang Dinh Dung, Hoang Dinh Khang, Hoang Dinh Kien; The children Hoang Thi Xuan, Hoang Thi Nhuong, along with Mr. Nguyen Trong Thao, were the witnesses and signatories of this. Thus, there are grounds to determine that the contract of transfer/donation of land use right between Mrs. Hoang Thi D and Mr. Hoang Dinh Ph, Mrs. Tran Thi Thanh H, made on March 18, 2014, is pretending. So it can be invalidated.

[4] For the request to revoke the land use certificate No. BS 189465 issued to Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H, as well as the Decision on issuance of the land use certificate number: 2108 / QD-UBND dated April 21, 2014 of the People's Committee of City V on granting a land use right certificate to Mr. Ph and Mrs. H, the Trial Panel found that: because the land use right transfer/donation contract between Mrs. Hoang Thi D and Mr. Hoang Dinh Ph, Ms. Tran Thi Thanh H was invalidated due to its pretending, and the People's Committee of City issued the land use right certificate to Mr. Ph and Mrs. H based on this contract, the decision on the issuance of the land use right certificate, as well as the land use right certificate issued to Mr. Ph and Mrs. H, has no legal validity. However, in this case, City V People's Committee and Notary Public Office were also deceived, so it was not their fault. Representative of People’s Committee of V city gave their comments as follows: If the involved parties admit the transfer is pretending, the People's Committee of City V agrees with the involved parties' request. Therefore, Mrs. D's request to revoke the land use right certificate is not frivolous.

[5] Regarding the consequences of the invalidated contract: Since the signed contract was only for the purpose of lending their name on the land use right certificate, and in fact it did not take effect, there is no transfer of property to each other, the consequences of invalidated contract have not been taken yet. Therefore, the involved parties did not make the request, so the Court of first instance split up to resolve in another case when the Court sees that the involved parties’ request is founded.

[6] The appeal filed by Mr. Ph and Mrs. H stated that, on September 3, 2013, Mrs. D had made a contract to donate the right to use land and associated property to Mr. Pham Duy L, so everything related to the above parcel must be decided by Mr. L. However, as shown in documents available in the case file: On October 29, 2013, Mrs. D made a contract to donate land use rights to Mr. L; the contract was notarized by Le Van Lan, the Notary Public Officer of Dat Viet, but on March 14, 2014, Mrs. D and Mr. L submitted the petition to revoke the contract of donation of the right to use the above land and this document was also notarized by Le Van Lan as a Notary Public Officer of Dat Viet Notary Public Office, so this donation contract is no longer valid; Mr. Ph and Mrs. H's request to bring Mr. L to participate in the court proceedings, but the first instance court’s ruling that it was considered unfounded. Hence, refusal to accept it is conforming to regulations. Moreover, this is a case that requires the declaration that a contract of donation of property between Ms. D and Mr. Ph and Mrs. H is invalid; If Mr. L thinks that this is his property, he has the right to bring another lawsuit to reclaim his property.

[7] As the appeal filed by Mr. Ph and Mrs. H argued that the first instance trial violated the service of procedural documents, the Trial Panel finds that: Based on the case file, during the process of the settlement of the case, the first instance court served and post procedural documents in full. Although the documents were not served in time and according to the correct process, the involved parties all knew the contents of those documents and had their opinions, so it has not affected their rights; This violation is not serious, not changing the nature of the case, so it is not necessary to cancel the first instance judgment, but the first instance court also needs to seriously draw on experience.

After consolidating the above-stated analyses, the Trial Panel sees that: In the process of resolving the case, the first instance court has fully considered the case to ensure the rights and obligations of the involved parties; At the appellate trial, there were no new details, so there was no basis to accept the appeal of the defendants, Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H. The request for the Trial Panel's acceptance of the appeal or cancellation of the first-instance judgment by the representative of the People's Procuracy in Hanoi attending the trial is not necessary.

[8] Legal costs: Because the appeal is not accepted, the appellant must pay appellate court costs according to the provisions of law.

In light of the aforesaid grounds;

HEREBY DECIDES

Pursuant to Clause 1, Article 308 of the Civil Procedure Code; the Court shall not accept the appeal of civil case defendants, namely Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H; uphold the first instance civil judgment No. 04/2018 / DS-ST dated June 29, 2018 of the People's Court of Nghe An province.

Regarding the first-instance court costs: Mr. Hoang Dinh Ph and Mrs. Tran Thi Thanh H must pay 300,000 VND of appellate civil court cost which is deducted from the amount of appellate court cost paid in advance according to the receipt No. AA / 2017/0000811 dated July 18, 2018 of the Civil Judgment Execution Department of Nghe An province; the Court hereby confirms that Mr. Ph and Mrs. H have fully paid appellate civil court costs.

The Appellate Judgement shall enter into force from the pronouncement date./.